I've sometimes wondered why upper-middle-class politicians treat the
disabled-rights lobby with such gingerly deference, and now I think I've figured out the
answer: that lobby may soon represent a majority of their constituents.

Last April the Hartford Courant reported that nearly one in three high
school students in the famously affluent Connecticut town of Greenwich are now officially
regarded as "disabled." It seems competitive Greenwich parents these days no
more think of sending the youngsters back to school without a disability designation than
without a new parka and pencil kit.

If you want an advance peek at how disabled-rights law might play out in
the rest of American society a few years down the road, look what it's doing to American
education right now. Driven by laws which make disability designation the key to a long
list of entitlements from private tutoring to extra time on tests, special ed is busting
school budgets nationwide. In Connecticut, farther down this particular road than most
states, special ed by itself now consumes, on average, 18 percent of school budgets; in
rural Voluntown the figure has hit 29 percent.

Parents want the best for their kids, and the advantages of a medicalized
label such as "learning disability" can be substantial, including individually
tailored learning plans, laptop computers, and the right to take notes when other students
can't. "You get a lot more one-on-one time with your teachers," said one
Greenwich student. So friendly experts hang out their shingles advertising their
diagnostic skills, while entrepreneurial lawyers organize parents to press their rights.

Under federal law, schools that want to resist demands for
special-ed services must jump through elaborate due-process hoops and risk
"one-way" attorneys' fee awards (the school system pays both sides' lawyers if
it loses but collects nothing if it wins). Between 1990 and 1994, the number of
formal special ed appeals tripled in the Nutmeg State. "I used to be able to put a
year's worth of hearing records in one file cabinet," state special-ed attorney
Theresa DeFrancis told the Courant. "They are in five or six cabinets now."

For ground-level educators, the hassle is astounding. A few months ago one
of my neighbors, the principal of a middle school in a nearby Connecticut town, told me he
now is obliged to spend half his time on special-ed issues. I thought he
had to be exaggerating, yet the Courant spoke to other principals who estimated they too
were spending half their time on such demands.

School officials are often reluctant to give offense, but many in this
case were willing to be outspoken. "Nobody is slow anymore," commented
Norwalk superintendent Ralph Sloan. "If you are not in the fast track, you have a
disability." "Anybody can be 'special education.'", added Middletown
special-ed chief Mariann Rossi-Ondusky. "I've just got to give you the right
tests."

Reported diagnosis rates vary drastically from town to town, with the
apparent incidence of learning disability, for example, running from less than 3 percent
to nearly 20 percent. Curiously or not, some of the state's lowest reported percentages
came from Bridgeport, a city almost as famous for poverty as Greenwich is for wealth. To
the extent that childhood disabilities correlate with public health woes -- deficits in
nutrition or prenatal care, for instance -- you'd expect Bridgeport to have the high
numbers and Greenwich the low. But then, not many Bridgeport parents can afford those
pricey lawyers and child-development experts.

Having grown to expect special assistance in grade school, the new
Disabled Generation is apt to level similar demands as it moves up through college and
into the workplace. Already 5 percent of Connecticut kids, up from 2 percent a decade ago,
are getting accommodations on the SAT, mostly extra time.

At the level of professional and occupational testing, the legal
sparring is intense. In a widely watched case last fall, the U.S. Court of
Appeals for the Second Circuit ruled that the New York State Board of Law Examiners had
violated Marilyn Bartlett's rights by refusing her further accommodation. Bartlett had
already failed the bar exam five times, despite such accommodations for her
learning disability as a 50 percent time bonus, a private room, and an assistant to read
the exam questions aloud.

What the law is really doing in such cases, it seems clear, is forcibly
redefining old standards of competence. Just as the PGA wrongly imagined until the Casey
Martin case that they had the right to define golf in the traditional manner to include
walking from hole to hole, so the bar examiners must be disabused of the idea that they
can hold aspiring lawyers to traditional legal skills such as the ability to assimilate
large amounts of written material quickly. The same lesson is being taught to the
administrators of medical exams, who are nowadays steadily yielding ground to the demands
of would-be M.D.s with L.D. diagnoses in their hip pockets.

Don't assume the institutions downstream -- the hospitals or law firms who
hire the newly fledged doctors and lawyers -- will be able to act as backstop when
standards decline. In general, it's considered a violation of the law for an
employer to count against an applicant that his transcript indicates a record of
accommodation, or to ask what kinds of accommodations were given or what disabilities were
claimed. In fact, disabled activists have been pressing for the elimination of
the loathed asterisk indicating that a test was taken under nonstandard conditions,
arguing that it violates the applicant's privacy rights.

After her excellent August 1997 New Republic article criticizing the boom
in college-level accommodation demands, writer Ruth Shalit came under attack from
disability activists. Typical was an Ohio State law professor's overheated view of the
supposed consequences of Shalit's views: "Better to let them be uneducated and
unemployed, drawing on our welfare rolls." From this and a thousand similar
statements by advocates, you might conclude that whatever the high costs and whatever the
damage to standards of competence disabled-rights laws might be doing, they can at least
be defended as effective in enabling disabled persons to work rather than sink into
dependency on government checks.

But that's not so. The newest study on disabled employment, released last
summer, confirms what informed observers already realized: the
disabled-rights laws passed in the last two decades, including the Americans with
Disabilities Act and various others, have been an utter failure at their announced aim of
moving disabled persons into work. The more laws we pass in the name of disabled
rights, in fact, the more disabled people seem to sit home jobless.

Last summer's bad news came from a Harris survey for the National
Organization on Disability, which found that 29 percent of disabled persons are employed
full or part time, down from 33 percent in 1986, notwithstanding a decade-plus of the most
intense legislation and activism on behalf of the disabled, the centerpiece being the ADA.
Other studies confirm a drop in of labor force participation by the disabled since the
law's passage. None of the numbers are perfect, and definitions of disability vary widely
from one study to another. But at a hearing convened by the Civil Rights Commission
November 12, academic demographers agreed that the trend is indeed a downward one.

The one exception -- seeming and temporary -- was a set of Census Bureau
figures released with great fanfare in 1996; it showed jobless rates for the disabled
falling modestly by one measure between 1991 and 1994. As it happens, however, those were
years of strong recovery from the trough of the 1991 recession, and the same rates fell
more sharply among nondisabled workers, which meant the gap between the two groups
actually widened. To this day, some disabled advocates still cite the census numbers to
assert that the ADA "created hundreds of thousands of jobs."

The deterioration of the job situation for the disabled does not, of
course, prove that the ADA has actually made things worse. Quite possibly the numbers owe
more to the "welfare trap" effect in which beneficiaries spurn work rather than
give up their Social Security benefits, including health coverage. But to Russell
Redenbaugh, a member of the U.S. Civil Rights Commission (CRC), it at least suggests that the
time has come to examine some of the unintended effects the law may be having.

In September, Commissioner Redenbaugh was the lone member to file a
dissent when the federal advisory panel came out with a lengthy report rejecting second
thoughts about the ADA's effects and calling for -- what else? -- stepped-up enforcement.
Pointing out that "the definitions and concepts of Title I have been expanded
in almost every way imaginable, with the resultant trivialization of 'disability',"
Redenbaugh expressed his fear that "laws and regulations that are designed to
enhance opportunity and expand rights often can end up serving as constraints and
limitations to both."

A Philadelphia investment manager and political independent appointed to
the CRC in 1990, Redenbaugh brings a unusual degree of personal experience to bear on
the issue, being the only disabled member to serve on the civil rights body since it was
set up in 1957. (He was blinded and lost most of the use of his hands in an explosion
when he was 17.) As a business person, he's also familiar with the hiring process.

So it's worth paying attention when he says he thinks one of the ways the
ADA has backfired is by forbidding employers from asking questions "likely to elicit
information about a disability" at any stage of a job interview before an offer is
made: "My own fear is that the ADA implementing regulations can have a chilling
effect on the hiring of the disabled."

Provocatively, Redenbaugh's dissent includes a list of sixteen extreme or
remarkable ADA cases that have reached courts around the country, many of which,
he writes, "defy credulity and are absolutely not what we intended when we passed the
law."

That's exactly the sort of thing that drives the other side crazy:
Disabled-rights advocates have virtually tagged it as a hate crime to
trade "horror stories" about the statute, as some of us have been known to do
from time to time. It must take a certain quiet courage for this seemingly
mild-mannered public figure to risk the kind of vilification he could face if the
disabled-rights community -- which, to put it mildly, does not have a record of taking
criticism gracefully -- identifies him as the equivalent of a "disabled Tom
Sowell."

Even if the civil rights establishment resists the temptation to go after
Redenbaugh personally, they're almost certain to tune out his message. In doing so,
they'll put themselves in the role of the husband stepping on the gas pedal in the old
joke. "But, Harold," his wife objects, "aren't we headed in the wrong
direction?" "Who cares?" Harold replies. "We're making great
time."

* * *

Contributing editor Walter Olson (hambo@mags.net) is author of The Excuse
Factory and senior fellow at the Manhattan Institute.